Mulkey v. Transit Authority of the City of Omaha
Filing
28
MEMORANDUM AND ORDER denying 21 Motion for Summary Judgment. Ordered by Chief Judge Laurie Smith Camp. (KMG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARK D. MULKEY,
Plaintiff,
8:14CV210
vs.
MEMORANDUM AND ORDER
TRANSIT AUTHORITY OF THE CITY OF
OMAHA d/b/a METRO AREA TRANSIT,
Defendant.
This matter is before the Court on the Motion for Summary Judgment (Filing No.
21) filed by Defendant Transit Authority of the City of Omaha doing business as Metro
Area Transit (“Metro”). For the reasons stated below, the Motion will be denied.
FACTUAL BACKGROUND
The Court’s local rules require that the moving party submit a statement of facts
consisting of short numbered paragraphs, supported by pinpoint references to evidence
in the record. See NECivR 56.1(a). The party resisting summary judgment must
respond in numbered paragraphs, with any disputed facts supported by pinpoint
references to the record. See NECivR 56.1(a). “Properly referenced material facts in the
movant’s statement are considered admitted unless controverted in the opposing party’s
response.” NECivR 56.1(b)(1).
Metro submitted a statement of material facts, with numbered paragraphs,
supported by pinpoint citations to evidence in the record in compliance with NECivR
56.1(b). Plaintiff Mark Mulkey (“Mulkey”) did not properly respond to Metro’s statement
of facts in accordance with NECivR 56.1(a). Instead, Mulkey responded generally to
Metro’s factual statements in the Argument section of his brief, in which he also
presented more facts. Although Mulkey’s response did not comply with NECivR 56.1,
the Court has attempted to incorporate herein the facts presented by both parties that
are supported by the record.
In December 2012, Metro posted a job opening for a maintenance supervisor
position (the “Supervisor Position”). Mulkey applied for the position at a time when he
was a second-class mechanic with Metro working the second shift, from 3:30 p.m. to
midnight. Sander Scheer (“Scheer”) also applied for the Supervisor Position. He was a
second-class mechanic with Metro at that time, working the day shift, from 9:00 a.m. to
5:30 p.m. Neither Mulkey nor Sheer had supervisory experience at Metro, although
Scheer had prior supervisory experience with a landscape company. Metro promoted
Scheer to the Supervisor Position.
Mulkey contends that Glenn Bradley (“Bradley”), Mulkey’s supervisor, called
Mulkey to his office on the day Scheer was promoted to the Supervisor Position.
Bradley said, “You didn’t get the job, we went with a younger person.” (Mulkey Dep.,
Filing No.26-2 at 106:7-9.) Mulkey then told Bradley that his comment “sounded like age
discrimination.” (Filing No. 26-2 at 106:11-12.) Bradley responded saying, “Well, I didn’t
mean it like that.” (Filing No. 26-2 at 106:12-13.) Bradley continued to say that “he didn’t
mean it to be derogatory as toward [Mulkey’s] age and stuff” and that “basically [Metro
was] looking at longevity.” (Filing No. 26-2 at 106:15-18.) Mulkey replied, “Well, it’s the
same thing.” (Filing No. 26-2 at 106:18-19.)
Metro contends that Mulkey cannot prove age discrimination was the “but-for”
reason for Metro’s decision to promote Scheer and not Mulkey, because Mulkey made
statements suggesting that Metro had other reasons for its decision. For example,
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during his deposition, Mulkey said he felt Metro promoted Scheer because it could
control him. He also thought since Scheer worked on the day shift, he knew David
Jameson (“Jameson”), Metro’s Safety Director, better, and “based on [Jameson and
Scheer] knowing each other” Scheer probably had an “inside track on the position . . . .”
(Filing No. 26-2 at 112:8-11.)
STANDARD OF REVIEW
“Summary judgment is appropriate when, construing the evidence most favorably
to the nonmoving party, there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.” Crozier v. Wint, 736 F.3d 1134, 1136 (8th Cir.
2013) (citing Fed. R. Civ. P. 56(c)). “Summary Judgment is not disfavored and is
designed for every action.” Briscoe v. Cnty. Of St. Louis, 690 F.3d 1004, 1011 n. 2 (8th
Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)
(en banc) cert. denied, 132 S.Ct. 513 (2011)) (internal quotation marks omitted). In
reviewing a motion for summary judgment, the court will view “all facts and mak[e] all
reasonable inferences favorable to the nonmovant.” Gen. Mills Operations, LLC v. Five
Star Custom Foods, Ltd., 703 F.3d 1104, 1107 (8th Cir. 2013). “[W]here the nonmoving
party will bear the burden of proof at trial on a dispositive issue . . . Rule 56(c) permits a
proper summary judgment motion to be opposed by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings themselves.” Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). The moving party need not negate the nonmoving
party’s claims by showing “the absence of a genuine issue of material fact.” Id. at 325.
Instead, “the burden on the moving party may be discharged by ‘showing’ . . . that there
is an absence of evidence to support the nonmoving party’s case.” Id.
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In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “‘a genuine issue of material fact’ such that [its] claim
should proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir.
2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). The nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come forward with specific facts
showing that there is a genuine issue for trial.” Briscoe, 690 F.3d at 1011 (quoting
Torgerson, 643 F.3d at 1042 (internal quotation marks omitted). “[T]he mere existence
of some alleged factual dispute between the parties” will not defeat an otherwise
properly supported motion for summary judgment. Quinn v. St. Louis Cty., 653 F.3d
745, 751 (8th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986)) (internal quotation marks omitted).
In other words, in deciding “a motion for summary judgment, facts must be
viewed in the light most favorable to the nonmoving party only if there is a genuine
dispute as to those facts.” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir.
2012) (quoting Torgerson, 643 F.3d at 1042) (internal quotation marks omitted).
Otherwise, where the Court finds that “the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,” there is no “genuine issue for trial”
and summary judgment is appropriate. Torgerson, 643 F.3d at 1042 (quoting Ricci v.
DeStefano, 557 U.S. 557, 586 (2009)) (internal quotation marks omitted).
DISCUSSION
Mulkey alleges that Metro discriminated against him on the basis of his age in
violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634,
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(“ADEA”) and the Nebraska Age Discrimination in Employment Act, Nebraska Revised
Statute § 48-1004, (“NADEA”) when Metro failed to promote Mulkey to the Supervisor
Position.
The purpose of the ADEA is to Apromote employment of older persons based on
their ability rather than age; to prohibit arbitrary age discrimination in employment; [and]
to help employers and workers find ways of meeting problems arising from the impact of
age on employment.@ 29 U.S.C. § 621(b). Thus, the ADEA makes it Aunlawful for an
employer . . . to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual=s age . . . .@ 29 U.S.C. §
623(a)(1); Schiltz v. Burlington N. R.R., 115 F.3d 1407, 1411 (8th Cir. 1997). Likewise,
the NADEA also makes such conduct unlawful. Neb. Rev. Stat. § 48-1004 (Reissue
2010). The NADEA is interpreted in conformity with the ADEA, and the Court will apply
the same analysis to both claims. See Billingsley v. BFM Liquor Mgmt., Inc., 645
N.W.2d 791, 801-02 (Neb. 2002).
AUnlike Title VII, the ADEA's text does not provide that a plaintiff may establish
discrimination by showing that age was simply a motivating factor,@ and therefore, does
not authorize mixed-motives age discrimination claims. Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 174 (2009). Thus, under the ADEA, an employer does not Adiscriminate
against [an] individual . . . because of such individual=s age,@ 29 U.S.C. § 623(a)(1)
(emphasis added), unless Aage [is] the >but-for= cause of the employer's decision.@
Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 516 (8th Cir. 2011) (citing
Gross, 557 U.S. at 176). “This is not to say that age must have been the only factor in
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the employer's decisionmaking process, but only that, as among several factors, age
was the factor that made a difference.” Tramp v. Associated Underwriters, Inc., 768
F.3d 793, 801 (8th Cir. 2014) (alterations in original).
“A plaintiff may establish [his] claim of intentional age discrimination through
either direct evidence or indirect evidence.” Tusing, 639 F.3d at 515 (quoting King v.
United States, 553 F.3d 1156, 1160 (8th Cir. 2009) (internal quotation marks omitted).
“By identifying direct evidence of discriminatory motive, a plaintiff overcomes summary
judgment, foregoing the McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)]
analysis.” Hilde v. City of Eveleth, 777 F.3d 998, 1003 (2015) (citing Torgerson v. City
of Rochester, 643 F.3d 1031, 1044 (8th Cir. 2011)). “Direct evidence includes
circumstantial evidence if the plaintiff shows ‘a specific link between a discriminatory
bias and the adverse employment action, sufficient to support a finding by a reasonable
fact-finder that the bias motivated the action.’” Id. (quoting Torgerson, 643 F.3d at
1046). “But if the plaintiff lacks evidence that clearly points to the presence of an illegal
motive, he must avoid summary judgment by creating the requisite inference of unlawful
discrimination through the McDonnell Douglas analysis, including sufficient evidence of
pretext.” Id. at 1004 (quoting Torgerson, 643 F.3d at 1044) (internal quotation marks
omitted).
“Under McDonnell Douglas, an employee first establishes a prima facie case of
discrimination.” Id. (citing McDonnell Douglas, 411 U.S. at 802). The elements of a
plaintiff’s prima facie case are: (1) he was over the age of 40 at the time of the
challenged decision; (2) he was not promoted; (3) he was qualified for the job; and (4) a
younger person was hired to fill the position. Id. at 1004. “The burden of production then
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shifts to the employer to ‘articulate some legitimate, nondiscriminatory reason for the
employee’s rejection.’”
Id. (quoting McDonnell Douglas, 411 U.S. at 802.
“If the
employer offers such a reason, the burden shifts back to the plaintiff to [demonstrate]
that the employer’s proffered explanation is pretext for unlawful discrimination.” Id.
Metro does not address whether Mulkey has presented direct evidence of
discrimination, and Metro does not deny that Mulkey can prove a prima facie case of
age discrimination. Metro argues that Mulkey’s statements are admissions proving that
age was not the “but-for” cause of Metro’s employment action. Yet, Metro has not
presented any evidence of its own legitimate non-discriminatory reasons for its
employment action. Instead, Metro relies on Mulkey’s own speculation about why
Scheer may have been promoted instead of Mulkey. When determining causation,
however, a court does not look to what the employee presumes about an employer’s
motives; instead, a court looks to evidence of the employer’s intent. See Tramp, 768
F.3d at 802 (“The key is what the employer supposes about age . . . .”) (quoting EEOC
v. City of Independence, Mo., 471 F.3d 891, 896 (8th Cir. 2006)) (internal quotation
marks omitted).
During his deposition, Mulkey repeatedly noted that his statements about
reasons why Scheer may have been promoted were “just [his] feelings.” (Filing No. 22-1
at 112:12-14.) He did not claim that these “feelings” were based on any statements
made by decision-makers at Metro. While some of Mulkey’s statements regarding
Metro’s employment decision may be probative of Metro’s motivation for its employment
action, they are not dispositive. Further, as evidence that age was the reason Metro
failed to promote Mulkey, Mulkey directed the Court to comments allegedly made by
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Bradley,1 Mulkey’s supervisor, suggesting that age may have been the “but-for” cause
of Metro’s employment action. Metro has not disputed that Bradley made these
comments to Mulkey nor has Metro directed the Court to any evidence identifying the
factors that actually influenced the decision-makers at Metro.
Considering the evidence presented by the parties in the light most favorable to
Mulkey, the Court concludes that a reasonable fact finder could conclude that age was
the “but-for” cause of Metro’s decision not to promote Mulkey to the Supervisor Position.
CONCLUSION
Metro failed to demonstrate that it is entitled to judgment as a matter of law.
Based on the evidence presented by the parties, questions of fact remain as to Metro’s
reasons for promoting Scheer to the Supervisor Position instead of Mulkey. Accordingly,
IT IS ORDERED: Transit Authority of the City of Omaha’s Motion for Summary
Judgment (Filing No. 21) is denied.
Dated this 23rd day of July, 2015
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
1
Although neither party has identified which Metro employees were responsible for making the
decision regarding the Supervisor Position, for purposes of this motion and viewing the facts in the light
most favorable to Mulkey, the Court infers that Bradley was a decision-maker.
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